THOMAS A. STEVENS, Employee/Cross-Appellant, v. AAA COOPER TRANSP. and CRAWFORD RISK MGMT. SERVS., Employer-Insurer/Appellants, and MN DEP=T OF LABOR & INDUS./VRU and MN DEP=TOF EMPLOYMENT & ECON. DEV., Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 3, 2005

 

No. WC04-247

 

HEADNOTES

 

EVIDENCE - CREDIBILITY.  Where the judge had implicitly concluded that the employee=s prior injuries played no significant role in the employee=s current condition, and where there was evidence in the medical record to support the judge=s conclusion, the compensation judge=s own characterizations, in her memorandum, of the employee=s credibility as Asuspect@ and of his failures to disclose his prior injuries as Amisrepresentations@ were not held to constitute findings on credibility adverse enough to the employee=s claim to warrant reversal of the judge=s award of benefits stemming from a Gillette-type injury.

 

CAUSATION - GILLETTE INJURY.  Where it was supported by expert medical opinion, the compensation judge=s conclusion that the employee sustained a Gillette-type injury as a result of her work was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the supporting medical opinion may have been inconsistent with other medical opinion, including the opinions of two of the opiner=s colleagues.

 

CAUSATION - PERMANENT AGGRAVATION.  Where it was amply supported by the employee=s testimony, the medical records, and expert medical testimony and opinion, the compensation judge=s determination that the employee=s injury was a permanent aggravation of the employee=s pre-existing condition, for which the employee was entitled to compensation for a 12% permanent partial disability of the whole body, was not clearly erroneous and unsupported by substantial evidence.

 

JOB SEARCH; TEMPORARY TOTAL DISABILITY.  Where, at the beginning of trial, counsel for the employer did not identify the absence of a job search as an issue for part of the benefits period claimed, where he expressly admitted that benefits were payable through that part of the period should primary liability be found, where primary liability was found, where the employer viewed the employee as being on a medical leave and advised him that his job was open for him until his leave expired, and where the employer was unable to accommodate the employee=s restrictions during the period of that leave, the compensation judge=s denial of benefits for that part of the benefits period at issue on grounds of a failed job search was clearly erroneous and unsupported by substantial evidence, although the judge=s denial of benefits for the remainder of the period at issue was affirmed.

 

REHABILITATION - COOPERATION.  Where the employee=s QRC testified that the employee cooperated with rehabilitation services during the period at issue, the compensation judge=s award of temporary total disability compensation was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the employee may not have fully met all of the QRC=s expectations.

 

TEMPORARY TOTAL DISABILITY.  Temporary total disability benefits cease ninety days after service of a medical report indicating that the employee has reached maximum medical improvement, and temporary partial disability benefit may be paid only to an employee who is working; where the employee reached ninety days post service of MMI on April 14, 2004, and was not thereafter working, the compensation judge=s conclusion that the employee was not thereafter entitled either to temporary total disability benefits or to temporary partial disability benefits based on an imputed earning capacity was not clearly erroneous and unsupported by substantial evidence.

 

ATTORNEY FEES - EDQUIST FEES.  Where the judge determined in a finding that the intervenor was entitled to reimbursement from workers= compensation benefits payable to the employee, the compensation judge=s failure to award an Edquist attorney fee to the employee=s attorney was apparently an oversight, and the judge=s decision was modified to grant to the employee=s attorney an Edquist fee of 20% of the benefits reimbursed to the intervenor.

 

Affirmed in part, reversed in part, and modified in part.

 

Determined By: Pederson, J., Stofferahn, J., and Wilson, J.

Compensation Judge: Jane Gordon Ertl

 

Attorneys:  Richard J. Chadwick, Chadwick & Mertz, Chanhassen, MN, for Cross-Appellant.  David A. Schooler and Charles A. Gross, St. Paul, MN, for Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The self-insured employer appeals from the compensation judge=s finding of a Gillette-type injury^[1] arising out of and in the course of the employee=s work for the employer on April 15, 2003, and from the judge=s consequent award of workers= compensation benefits.  The employee cross-appeals from the judge=s denial of his claim for temporary total disability benefits between May 20, 2003, and December 1, 2003; from her denial of either temporary total disability benefits or temporary partial disability benefits based on an imputed wage subsequent to the employee=s reaching ninety days post maximum medical improvement [MMI] on April 14, 2004; and from the judge=s failure to award an Edquist attorney fee^[2] to the employee=s attorney for his work in obtaining reimbursement of unemployment compensation benefits to the intervenor Department of Employment and Economic Development.  We reverse the judge=s denial of temporary total disability benefits from May 20, 2003, to October 23, 2003, we modify the decision to award an Edquist fee, and we affirm the remainder of the judge=s decision.

 

BACKGROUND

 

Thomas Stevens has worked as an over-the-road truck driver for AAA Cooper Transportation [the employer] since 1996.  Mr. Stevens [the employee] worked as a team driver, sharing duties with a partner, primarily David Kruger.  Job duties included climbing in and out of the tractor cab, hooking and unhooking the semi-trailer to the Afifth wheel@ of the tractor, performing pre-trip inspections, and driving the semi-truck.  When he was not driving, the employee was sitting as a passenger or sleeping in the back part of the cab.  In the spring of 2003, the employee and his partner were regularly driving a 1300-mile round trip between Minneapolis and Pevely, Missouri.  Most of this route is freeway driving, with some surfaces rougher than others and with some rhythmic vibration.  During each round trip, the employee spent nine to ten hours as a driver and nine to ten hours as a passenger in the tractor cab.  Between April 13 and May 1, 2003, the employee made ten trips to Pevely and back.

 

On April 15, 2003, while on the fourth leg of a three-day trip of almost continuous driving for the employer, the employee noted the onset of pain in his right hip.  Over the next couple of weeks, the pain gradually worsened to include radicular right leg pain down to his foot.  On May 1, 2003, the employer had scheduled the employee for a trip to Dallas, Texas, but the employee=s condition had continued to worsen and he had advised his employer that he would be unable to make the trip.  On April 15, 2003, the employee was sixty-one years old and was earning a weekly wage of $1,090.48.

 

On May 6, 2003, the employee saw Dr. Richard Freese at the Park Nicollet Clinic with complaints of right hip and right leg pain that he had been experiencing Afor the past three weeks.@  The employee advised Dr. Freese that he worked as a long distance truck driver and that Ahe has had radicular right leg pain radiating into his groin, down below his knee and feels like it is in his toes.@  Dr. Freese performed a physical examination and diagnosed probable neurologic impingement of the L4 interspace.  He scheduled an MRI scan, prescribed physical therapy and medications, and restricted the employee from long distance driving, Aat least over the next two-week period of time.@  Later that same day, the employee called Dr. Freese indicating that he wished to have his condition treated as a workers= compensation claim with an April 15, 2003, date of injury.  Dr. Freese noted that Athere [was] no single precipitating event, although with him climbing in and out of his truck, loading and unloading, it is certainly a reasonable assumption that this was work-related.@  He concluded that Aon a more probable than not basis it probably is work-related.@

 

The employee underwent a lumbar MRI scan on May 15, 2003.  The scan was interpreted as showing a small to moderate-sized central broad-based disk herniation at L4-5 that was causing mild to moderate central canal and bilateral recess stenosis and possible L5 nerve root impingement.  It was also read to show a broad-based disk bulge at L3-4 with borderline central canal stenosis.

 

On May 19, 2003, the employee was seen in the Park Nicollet Occupational Medicine Department by Dr. Kirsten McGrail.  Dr. McGrail obtained a history, performed a physical examination, and reviewed the employee=s MRI scan.   She noted that the employee had been receiving physical therapy and taking medications for pain.  With regard to his past medical history, the employee reported to Dr. McGrail that,

 

[O]ver the years he has had episodic low back pain without radicular symptoms, related to heavy duty activity.  Has never been evaluated, never had any problems.  He had a previous car accident 40 years ago without any complications.  However, the patient reports that his symptomatology is quite episodic and he has gone many months without any back pain whatsoever, and has never missed a day of work.  Patient reports that he was in his usual state of health without any back pain at all on the day of the injury on 04/15/03.

 

Dr. McGrail diagnosed right-sided back pain with radicular symptoms and Asmall moderate-sized L4-5 disk herniation, as well as L3-4 disk herniation, clinically improving.@  The doctor released the employee to return to work but not to commercial driving.  She recommended that the employee change position every half hour, occasionally sit and stand, continue his home exercise program, and use ice for twenty minutes every four to six hours as needed.  She renewed the employee=s prescription for medications and physical therapy and requested that he follow up in ten days for reevaluation.

 

The employee returned for a follow-up visit with Dr. McGrail on June 6, 2003.  The doctor noted at that time that the employee had completed a number of sessions of physical therapy and was working on a home exercise program.  The employee continued to complain of right lower extremity pain radiating from the right gluteal region into the ankle, as well as persisting numbness in the right toe.  In light of those complaints, the doctor scheduled an EMG nerve conduction velocity study to be followed by a neurosurgical consultation, continuing the employee=s physical restrictions, including the restriction against commercial driving.  She noted that AFMLA forms were completed for the patient and he is not currently suitable for commercial driving due to his current medication regimen and the right lower leg weakness and his employer has not been able to accommodate restrictions.@

 

The employee underwent the recommended EMG on June 16, 2003.  Dr. Larisa Kusar interpreted the study as abnormal but noted that she had been unable to differentiate Aright acute common peroneal neuropathy versus right L5 radiculopathy versus axonal injury process.@  Clinical correlation was recommended.

 

The employee was evaluated by neurosurgeon Dr. Andrew Smith on June 24, 2003.  Dr. Smith reported that the employee=s condition represented A[m]ostly L5 radiculopathy with objective neurologic finding and mild subjective L4 radiculopathy with the pain originally being in the anterior thigh primarily and he has pathology with lateral recessed stenosis that could affect both the L4 and L5 nerve roots on the right.@  He recommended that the employee undergo cortisone injections of the L4 and L5 nerve roots, noting that surgery could be considered if the injections should prove to be unsuccessful.

 

On July 21, 2003, the employee underwent the recommended cortisone injections of the L4 and L5 nerve roots.  In a follow-up visit with Dr. McGrail on August 1, 2003, the employee reported marked improvement in his symptoms.  He indicated that he was no longer taking additional pain medication or experiencing the pain in his right hip that had previously been very bothersome.  Dr. McGrail noted that the employer=s workers= compensation insurer had denied the employee=s claim and that the employer had not been able to accommodate the employee=s restrictions against commercial driving.  She continued to recommend that the employee be restricted from doing any commercial driving, stating, AI feel that the repetitive vibration will provoke on-going symptoms.@

 

On August 19, 2003, Jean Jones, the employer=s Manager of Personnel, Payroll, and  Employee Benefits, wrote to the employee regarding his status Aas an employee on leave.@  She notified the employee that his family medical leave expired on August 1, 2003, but that, pursuant to the employer=s extended leave policy, he was eligible for up to sixty working days of additional leave.  She indicated further, however, that, if he was still unable to return to work by the expiration of his extended leave, he would be removed from payroll and administratively terminated.  Ms. Jones advised the employee that his extended leave would expire on October 24, 2003.

 

The employee returned to Park Nicollet on September 25, 2003, and was seen by Dr. McGrail=s associate, Dr. Robert Gorman.  The employee reported some overall improvement in his symptoms but that he still had some residual numbness and ankle weakness in the right leg.  He reported also that he still had a difficult time with any sort of driving, that, A[e]ven when he tries to drive his own vehicle for an hour or so, he will have to get off the road and stretch and extend.@  Dr. Gorman reviewed the employee=s history and diagnostic studies and performed a physical examination.  His assessment was Aright L4-L5 disk herniation radiculopathy.@  He continued to recommend the same limitations outlined by Dr. McGrail, including that precluding commercial driving.  A follow-up in four weeks was scheduled, at which Dr. Gorman anticipated completing the employee=s AMMI/PPD@ determination and long-term work restrictions.

 

On October 23, 2003, Dr. Gorman concluded that the employee had reached maximum medical improvement [MMI] and was qualified for a 12% whole body impairment rating in accordance with Minn. R. 5223.0390, subp 4 D(1).  He continued to assign work restrictions, including a preclusion of commercial driving.  At this point, the doctor stated that the employee=s restrictions were permanent.

 

At about this same time, the employee=s extended medical leave ended, and he was unable to return to his driving position with the employer.  As a result, the employer removed the employee from its payroll and terminated him.  Shortly thereafter, the employee applied for unemployment compensation benefits, which he began receiving on November 2, 2003.

 

Also around this same time, the employee served a response to a Demand for Discovery that had previously been served by the employer.  In the employer=s Demand, the employee was requested to A[f]urnish the names and addresses of all persons who have treated the Petitioner in the past for injuries or conditions identical or similar to those alleged in the Claim Petition, the dates of treatment, and provide medical authorization for each, authorization forms attached.@  The employee responded as follows:

 

The Employee has had no paid injuries or conditions identical or similar to those alleged at this time.  The only medical providers who have treated the Employee for injuries or conditions identical or similar to those alleged in the Claim Petition are the treating physicians at Park Nicollet Clinic.  See medical records attached to Claim Petition.

 

On October 27, 2003, the employee filed a claim petition seeking various workers= compensation benefits related to an alleged Gillette-type injury to his low back arising out of his work for the employer on or about April 15, 2003.  The employer filed an answer denying primary liability for the alleged injury and the benefits claimed.

 

Because of the employer=s denial of liability, the employee was referred to the Department of Labor and Industry=s vocational rehabilitation unit for a rehabilitation consultation.  On December 1, 2003, a consultation was performed by qualified rehabilitation consultant Kristel Tvrdik.  The employee was found to be eligible for rehabilitation services, and a rehabilitation plan was prepared calling for a return to work with a different employer.  According to the plan, the employee was to conduct a job search for full-time employment with the assistance of the rehabilitation unit=s in-house placement specialist.

 

On January 8, 2004, the employee was examined at the request of the employer by orthopedist Dr. David Boxall.  The doctor obtained a history from the employee, reviewed the employee=s records from the Park Nicollet Clinic, and conducted a physical examination.  Dr. Boxall diagnosed Amultiple level degenerative disc disease with central disc herniation at L4-5.@  Finding evidence of chronic, intermittent low back pain prior to April 15, 2003, Dr. Boxall stated that, A[b]ased solely on his history, and assuming it to be true and correct, it is my opinion that he aggravated that pre-existing condition on April 15, 2003, and developed a disc herniation at L4-5.@  The doctor noted that the employee had related that he had never had radicular symptoms prior to April 15, 2003.  Dr. Boxall apportioned liability for the employee=s time off work and need for treatment 50% to his pre-existing condition and 50% to the incident on April 15, 2003.  He restricted the employee from  prolonged sitting or standing, from repetitive bending or lifting for more than a couple of hours at a time, and from lifting in excess of fifty pounds.  He rated the employee=s current permanent partial disability at 11% of the whole body under Minn. R. 5223.0390, subp. 4 D(1), which provides for compensation for radicular pain or radicular paresthesia.^[3]  However, because the degenerative findings noted on the employee=s MRI scan take years to develop, Dr. Boxall opined that this condition was almost totally due to a degenerative condition that preexisted April 15, 2003.

 

On January 15, 2004, counsel for the employer took a pretrial discovery deposition of the employee.  At that deposition, the employee essentially testified that he had no recollection of any injuries to his back in the course of his employment prior to 1996.  At the end of the deposition, the employer=s counsel disclosed records that he had obtained from the Minnesota Department of Labor and Industry evidencing work-related back injuries on April 6, 1981, September 11, 1985, and December 19, 1994.  Again asked about the injuries, the employee still had no recollection of the first two but did recall a slip and fall at work in December 1994.  With regard to the 1994 injury, however, the employee testified that he did not Arecall any bad injury of any kind.@

 

After receiving additional medical records and records from the Department of Labor and Industry, Dr. Boxall issued a supplemental report on February 6, 2004.  He concluded that the employee=s history of prior injuries requiring treatment and loss of time from work was consistent with the employee=s imaging findings showing long-standing multilevel degenerative disc disease.  ABased on this information,@ he stated, Aincluding the history that he was in a brand new air ride truck, and that he initially did not relate the onset of his back complaints to his work activities either to his employer or the initial visit with his physician,@ Dr. Boxall was of the opinion that there was no evidence to support a finding of Gillette injury to the lumbar spine as a result of the employee=s activities at work.  The doctor stated also that, if it should be determined that the employee did sustain a Gillette injury as a result of his work activities in mid April of 2003, the injury was a temporary flare-up of his pre-existing condition.  Dr. Boxall essentially reiterated this opinion at a deposition on April 20, 2004.

 

On April 29, 2004, deposition testimony was also taken from Dr. Gorman, who had also been provided with records relating to the employee=s prior work injuries.  In response to a detailed hypothetical regarding the employee=s work activities, Dr. Gorman expressed an opinion that the employee=s work activities were a substantial contributing cause of the employee=s low back condition and disability after April 15, 2003.

 

The matter came on for hearing on April 30, 2004, and for a second day of hearing on June 8, 2004.  Issues at hearing included whether or not the employee had sustained a Gillette -type injury to his low back on April 15, 2003, and the nature and extent of that injury.  By findings and order filed August 3, 2004, the compensation judge found that the employee had sustained a Gillette injury to his low back on April 15, 2003, and that he was entitled to temporary total disability benefits from May 2, 2003, through May 19, 2003, and from December 1, 2003, through April 14, 2003, consequent to that injury.  The judge also found that the employee was entitled to compensation for a 12% permanent partial disability; that the Department of Employment and Economic Development was entitled to reimbursement from temporary total disability benefits paid to the employee after December 1, 2003; and that the Department of Labor and Industry, Vocational Rehabilitation Unit, was also entitled to reimbursement.  The employer appeals and the employee cross-appeals.

 

STANDARD OF REVIEW

 

On appeal, the Workers= Compensation Court of Appeals must determine whether Athe findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat ' 176.421, subd. 1 (2004).  Substantial evidence supports the findings if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate.@  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

A[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers= Compensation Court of Appeals] may consider de novo.@  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 6-9 (W.C.C.A. 1992), summarily aff=d (Minn. June 3, 1993).

 

DECISION

 

1.  Gillette Injury

 

A Gillette injury is a result of repeated trauma or aggravation of a pre-existing condition which results in a compensable injury when the cumulative effect is sufficiently serious to disable an employee from further work.  Gillette v. Harold, Inc., 257 Minn. 313, 321-22, 101 N.W (2d) 200, 205-06, 21 W.C.D. 105 (1960); see also Carlson v. Flour City Brush Co., 305 N.W.2d 347, 350, 33 W.C.D. 594, 598 (Minn. 1981).  In order to establish a Gillette injury, an employee must Aprove a causal connection between [his] ordinary work and ensuing disability.@  Steffen v. Target Stores, 517 N.W.2d 579, 581, 50 W.C.D. 464, 467 (Minn. 1994).  The question of whether an employee has sustained a Gillette injury is one of fact for the compensation judge.  Its determination is primarily dependent on the medical evidence.  See Marose v. Maislin Transport, 413 N.W.2d 507, 40 W.C.D. 175 (Minn. 1987).

 

The employer first contends that the judge=s finding of a Gillette injury in this case is inconsistent with the judge=s credibility findings.  It asserts that the employee has had a long-standing history of periodic low back complaints superimposed on degenerative changes - - the same complaints that he has had since April 2003.  Further, it argues, the employee did not initially relate or report his condition as being work-related to either his employer or doctor.  Indeed, the employer contends, the employee intentionally attempted to conceal, from the employer, from the treating doctors, and from Dr. Boxall, his history of prior back injuries.  In her memorandum, the employer argues, the judge characterized the employee=s credibility as Asuspect@ and his failures to disclose his prior injuries as Amisrepresentations.@  Arguing that these conclusions by the judge regarding the employee=s credibility do not correlate with the judge=s decision to award benefits, the employer contends that the judge=s decision should be reversed.  We are not persuaded.

 

First of all, assessment of a witness=s credibility is the unique function of the trier of fact.  Brennan v. Joseph G. Brennan, M.D., 425 N.W.2d 837, 839-40, 41 W.C.D. 79, 82 (Minn. 1988), citing Spillman v. Morey Fish Co., 270 N.W.2d 781, 31 W.C.D. 187 (Minn. 1978).  Even though the judge may have referred to the employee=s credibility as Asuspect,@ we cannot conclude that the judge=s observations constitute a finding on credibility adverse to the employee.  A factfinder generally Amay accept all or only a part of any witness= testimony.@  Proffit v. Minnesota Harvest Apple Orchard, 48 W.C.D. 215, 219-20 (W.C.C.A. 1992), summarily aff=d (Minn. Mar. 3, 1993) (quoting City of Minnetonka v. Carlson,  298 N.W.2d 763, 767 (Minn. 1980)).  And as the judge explained, Amisrepresentations by the employee do not result in an automatic denial of an otherwise compensable injury.@  The judge also noted that she found sufficient corroborating evidence for the employee's claim by comparing the medical evidence related to the employee=s prior injuries with evidence related to the employee=s back condition after the work activity in April 2003, in addition to the testimony of David Kruger confirming the nature of the work activity.

 

The judge issued three very detailed findings setting forth her analysis of the employee=s prior back injuries.  In her memorandum, she stated as follows:

 

The employee=s prior injuries, based on a preponderance of the medical evidence, generally resolved.  The employee did not have significant, ongoing problems with his back prior to April 14, 2003.  He did not have serious neurological findings or radicular symptoms on prior examinations, although he had a multiple level degenerative condition.  The symptoms that he developed after April 15, 2003, were different, more severe, and more extensive than the symptoms he had before that time and are well documented by the medical records.

 

Given her implicit conclusion that the prior injuries played no significant role in the employee=s current condition, it was not unreasonable for the judge to conclude that any credibility issue arising from the employee=s failure to report those injuries did not impact the outcome of the case.

 

As to the issue of medical causation for the alleged Gillette injury, the employer apparently contends that Dr. Gorman=s causation opinions should have been rejected by the judge because his conclusions were allegedly inconsistent with those of his colleagues, Drs. Kusar and Smith.  It argues that Dr. Kusar could not determine whether the employee=s abnormal EMG was related to L5 radiculopathy and that Dr. Smith Aclearly felt that the radiculopathy was caused by degenerative disc disease rather than the disc herniation.@  These opinions, it argues, support Dr. Boxall=s conclusion that the employee=s symptomology is related to the employee=s pre-existing degenerative condition.  We are not persuaded.

 

The compensation judge accepted the opinions of Dr. Gorman over those of Dr. Boxall.  Based on Dr. Gorman=s opinions, the judge determined that the employee sustained a permanent low back injury as a result of his work activity in April 2003.  She determined also that the nature of the employee=s injury is Achronic low back pain with herniated disk with L5 radiculopathy.@  In her memorandum, the judge explained the basis for her findings as follows:

 

Dr. Gorman opined that the employee=s work activity and long distance driving aggravated, accelerated, or caused the employee=s low back pain and right L4-5 radiculopathy.  Dr. Gorman explained his reasons, AI feel that that=s the case based on his history, physical, the consistency of his findings, the imaging test, the EMG, his response to the local L5 nerve root injection, and my history and evaluation with him on my September and October visits.@  Dr. Gorman credibly explained his opinions at his deposition and based his opinions on his evaluations as well as the entire medical history of this employee=s back symptoms.

 

*     *     *

 

In this case the medical records are relied on to provide the evidence needed to make a determination regarding the cause of the employee=s condition, his ability to work, and his restrictions.  Because of the objective findings on MRI and EMG, the medical records as a whole, and the persuasive opinion of Dr. Gorman, it is determined that the employee sustained a compensable low back injury related to his work.

 

Questions of medical causation fall within the province of the compensation judge.  Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D. 181 (Minn. 1994).  The judge=s finding of a Gillette injury in this case is amply supported by the record, particularly the well-founded opinions of Dr. Gorman.  Finding no basis in the record to reject the judge=s findings on credibility or causation, we affirm the judge=s determination that the employee sustained a Gillette injury arising out of his work activities for the employer.  Hengemuhle v. Long Prairie Jaycees, 338 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984). 

 

2.  Temporary vs. Permanent Injury

 

Citing, without analysis, factors set forth in McClellan v. Up North Plastics, slip op. (W.C.C.A. Oct. 18, 1994), the employer argues that, even if the employee sustained a Gillette injury on April 15, 2003, that injury was at most only a temporary aggravation of a pre-existing condition that resolved on or about October 23, 2003.  We are not persuaded.  In this case, the judge=s determination that the employee=s injury was a permanent aggravation of the employee=s pre-existing condition is amply supported by the employee=s testimony, the medical records, and Dr. Gorman=s testimony, as referenced above.  At Finding 16 the judge stated that A[b]ased on Dr. Gorman=s medical opinions and reports it is determined that the employee has not returned to his pre-injury status and the injury was not merely a temporary aggravation of a pre-existing condition.@  Substantial evidence supports the judge=s decision on this issue and we affirm.

 

3.  Permanent Partial Disability, Rehabilitation, and Medical Benefits

 

In that the employer is apparently contesting the employee=s claims for payment of permanent partial disability, rehabilitation, and medical benefits only on grounds that it is not primarily liable for the threshold work injury, no discussion of the specific claims is required.  Therefore, the judge=s findings awarding 12% permanent partial disability benefits, rehabilitation benefits, and medical benefits are affirmed.

 

4.  Temporary Total Disability Benefits

 

a)  May 20, 2003, to December 1, 2003.  At Finding 18, the compensation judge found that the employee was released to work with restrictions as of May 19, 2003.  She noted that, although there were minor adjustments to his restrictions as he continued to treat with his physicians at Park Nicollet, the employee was not taken off work.  She found that, although the employer was unable to accommodate his restrictions, the employee had an obligation to seek other employment.  Because the employee did not meet his burden to establish that he diligently sought employment, the judge denied the employee=s claim for temporary total disability benefits from May 20, 2003, to December 1, 2003.  On appeal, the employee argues that the employer admitted that, under the facts and circumstances herein, it was reasonable for the employee to be considered temporarily totally disabled at least through October 23, 2003.  He asserts that the issue of a reasonable job search prior to that date was not even raised as an issue by the employer during trial.  Moreover, he contends, the judge=s denial of temporary total disability benefits during this period is also otherwise unsupported by substantial evidence.  He asserts that, during the period at issue, he was engaged in active, time-consuming medical care and, under the employer=s personnel policies, he had been kept on the employer=s payroll records as an Aemployee on leave@ until October 24, 2003.  Because, he argues, of his physical limitations, his limited education and training, his lack of transferable skills, and his ongoing need for medical care and treatment during the summer of 2003, he should have been considered temporarily totally disabled through at least December 1, 2003, when he first received the assistance of a QRC.  We agree in part.

 

At the beginning of trial, counsel for the employer defined its defenses as follows:

 

We have two defenses.  One is the employee can=t sustain his burden of proof under Steffen. . . it=s a medical causation issue.

 

The second issue would be the nature and extent.  . . . My argument is that in the alternative, there was a temporary aggravation of long-standing pre-existing degenerative disease as well as prior injuries and that the resolution date of that temporary aggravation would be October 23, 2003.

 

Counsel for the employer then went on to state, as to temporary total disability in particular,

 

We have defenses in this order.  Number one, obviously, it=s not due and owing if there is no primary liability.  Number two, if there is a temporary aggravation, we would agree that temporary total is payable through October 23, 2003, but that it would cease as of that date. . . .  The next argument would be that there should be no wage loss after October 23, 2003 because the employee has failed to engage in a reasonable and diligent job search and/or cooperate with rehabilitation.

 

Given that these admissions were made by the employer and that service of MMI was stipulated to have occurred on January 15, 2004, we conclude that it was for the most part reasonable for the employee, as he argues on appeal, to refrain from presenting additional evidence and arguments at trial regarding his job search and his right to receive temporary total disability from May 2, 2003 to December 1, 2003, and we conclude that the judge=s denial of temporary total disability benefits through October 23, 2003, should be reversed.

 

Even without the employer=s admissions, the judge=s denial through October 23, 2003, is unsupported by substantial evidence in the record as a whole.  On that date, Dr. Gorman advised the employee that he had reached maximum medical improvement from his injury and that his restrictions against returning to over-the-road truck driving were permanent.  Up until that time, the employee was actively receiving medical care from his doctors and had been placed on medical leave by his employer.  The doctors at Park Nicollet essentially had released the employee to perform some form of work after the very first visit on May 6, 2003, but the mere fact that the employee was capable of performing some work does not necessarily mean that he was required to commence a search for alternative employment immediately in order to qualify for temporary total disability benefits.  In this case, the employer viewed the employee as being on a medical leave and advised him that his job was open for him until his extended leave expired.  During that period, the employer was unable to accommodate the employee=s restrictions.  Therefore, based on the employer=s admissions at trial and other reasons stated, we reverse the judge=s denial of temporary total disability benefits through October 23, 2003.  However, because the employee had reached maximum medical improvement from his injury, knew that he would not be returning to work for the employer by October 23, 2003, and did not conduct a job search, we affirm the judge=s denial of benefits between October 24, 2003 and December 1, 2003.

 

b)  December 1, 2003, through April 14, 2004.  At Finding 19, the compensation judge accepted the testimony of QRC Tvrdik that the employee had made a good faith effort to cooperate with rehabilitation services and the rehabilitation plan after December 1, 2003.  Therefore, the judge awarded temporary total disability benefits to the employee from December 1, 2003, until April 14, 2004, ninety days after the stipulated MMI service date of January 15, 2004.  The employer contends that the employee is not entitled to temporary total disability benefits during this period because he did not cooperate with Ms. Tvrdik as expected.  It argues that Ms. Tvrdik testified that she expected employees to do an independent job search, to make telephone calls, to follow up with employers on leads, to read newspapers, and to follow up on those leads.  Because the employee did not fully meet all of Ms. Tvrdik=s expectations, the employer argues, the judge should have found that the employee failed to cooperate with rehabilitation.  We are not persuaded.

 

As noted by the compensation judge, once an employee has been provided with rehabilitation services, eligibility for temporary disability benefits is less dependent on the employee=s job search efforts than on his cooperation with the rehabilitation plan.  Schreiner v. Alexander Constr. Co.,. 48 W.C.D. 469 (W.C.C.A. 1993).  Here, the judge accepted the testimony of QRC Tvrdik that the employee cooperated with rehabilitation services and for that reason was entitled to temporary total disability beginning December 1, 2003.  The judge=s conclusion that the employee was cooperating with rehabilitation efforts is supported by substantial evidence, including the rehabilitation records introduced into evidence and the testimony of QRC Tvrdik.  Accordingly the decision of the compensation judge is affirmed.

 

c)  Benefits Post-MMI.  The employee argues that, because he is seeking employment and fully cooperating with his rehabilitation plan, it is unconscionable to terminate his right to receive temporary total disability benefits ninety days after MMI.  Given the employee=s age, education, physical restrictions, limited work history, and lack of transferable skills, he argues, terminating entitlement to temporary total disability benefits is clearly erroneous as a matter of law.  We are not persuaded.

 

The parties stipulated that MMI had been reached and that service was effective January 15, 2004.  The judge correctly determined that, in accordance with Minn. Stat. ' 176.101, subd. 1(j), temporary total disability benefits ceased on April 14, 2004, ninety days after service of the MMI opinion.  While we are not unsympathetic to the employee=s situation, the statutory provisions are clear on this issue, and the judge=s decision is affirmed.

 

The employee argues, in the alternative, that he is entitled to temporary partial disability benefits continuing from April 15, 2004, based upon an imputed earning capacity of $8.00 to $10.00 per hour as determined by the compensation judge at Finding 26.  We disagree.

 

Again, the law is quite clear.  Temporary partial disability benefits Amay be paid only while the employee is employed, earning less than the employee=s weekly wage at the time of the injury.@  Minn. Stat. ' 176.101, subd. 2(b); Parson v. Holman Erection Co., 428 N.W.2d 72, 41 W.C.D. 129 (Minn. 1988).  Because he is not currently employed, the employee is not entitled to temporary partial disability benefits.  The judge=s decision on this issue is affirmed.

 

5.  Edquist Fee

 

At Finding 22, the compensation judge determined that intervenor Minnesota Department of Employment and Economic Development is entitled to reimbursement from workers= compensation benefits payable to the employee from December 1, 2003, to April 10, 2004.  The employee does not dispute the ordered reimbursement to the intervenor, but he contends that the judge erred in failing to award an Edquist fee to the employee=s attorney.  We agree.

 

In reviewing the very thorough findings and orders in this case, we conclude that the judge=s failure to award an Edquist fee from the reimbursement to the intervenor was simply an oversight.  Therefore, we modify the judge=s order to grant an Edquist fee of 20% of the benefits reimbursed to the intervenor.